Opinion
100701/16
05-26-2016
In the Matter of the Application of William Valentin, Petitioner, v. Correction Officers' Benevolent Association, Inc., Respondent.
Philip H. Seelig, Esq. Seelig Law Offices, LLC 299 Broadway Suite 1600 New York, New York 10007 (212) 766-0600 Attorney for Petitioner Howard G. Wien, Esq. Kohler & Isaacs LLP 61 Broadway, 25th Fl. New York, New York 10006 (917) 551-1300 Attorney for Respondent
Philip H. Seelig, Esq. Seelig Law Offices, LLC 299 Broadway Suite 1600 New York, New York 10007 (212) 766-0600 Attorney for Petitioner Howard G. Wien, Esq. Kohler & Isaacs LLP 61 Broadway, 25th Fl. New York, New York 10006 (917) 551-1300 Attorney for Respondent Kathryn E. Freed, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION: PAPERS/NUMBERED ORDER TO SHOW CAUSE AND VERIFIED PETITION 1-2 (Exs. A-F) EMERGENCY AFF. OF COUNSEL IN SUPPORT 3 AFF. OF PETITIONER IN SUPPORT 4 MEMO. OF LAW IN SUPPORT 5 RESPONDENT'S AFF. IN OPP. 6 (Ex. 1-18) RESPONDENT'S MEMO. OF LAW IN OPP. 7 OPINION AND AWARD OF ARBITRATOR 8 RESPONDENT'S SUPP. AFF. IN OPP. TO PETITION 9 PETITIONER'S REPLY MEMO. OF LAW 10
UPON THE FORGOING CITED PAPERS, THIS DECISION/ORDER OF THE MOTION IS AS FOLLOWS:
In this CPLR article 78 proceeding petitioner, William Valentin, seeks, inter alia, a determination that he is eligible to run for President of respondent Correction Officers' Benevolent Association, Inc. (COBA). After oral argument and a review of the parties' papers and the relevant statutes and case law, the petition is denied and the proceeding is dismissed. FACTUAL AND PROCEDURAL BACKGROUND :
Petitioner has been a delegate of COBA, a domestic not-for-profit corporation, for a total of 14 years. Pet., at par. 9. COBA is the collective bargaining representative for correction officers employed by the New York City Department of Corrections (DOC). He served as a COBA Executive Board member in the position of corresponding secretary for 5 years. Id., at pars. 10, 11. After a disciplinary hearing on August 19, 2015, he was removed from his position on the Executive Board the following day. Id., at par. 12.
Petitioner filed a separate Article 78 proceeding challenging actions taken by COBA regarding his dismissal from the Executive Board.
In a verified petition dated April 30, 2016, petitioner alleged, inter alia, that, at COBA's regular meeting on April 20, 2016, all potential candidates for COBA officer positions were advised that nominating petitions were to be submitted by May 18, 2016. Pet., at par. 25. Petitioner alleged that, since "it was announced that a member must be an incumbent Delegate to run", COBA made "a final administrative determination that candidates must be incumbent." Pet., at par. 26. He further claimed that the COBA Executive Board has been discouraging Delegates from signing his nominating petition so that he cannot run for COBA President. Pet., at par. 39.
The Constitution and By-Laws of COBA (CBL) provide, inter alia, that:
To be eligible to hold the office of President, . . . [one] has to be a member of the New York City [DOC] and a member of [COBA] for not less than five (5) years and has been a Delegate of [COBA] for not less than two (2) years prior to the election, and has attended not less than ten (10) consecutive Regular Meetings of [COBA] prior to his/her nomination, except if already an incumbent Executive Board Member.Ex. B to Petition, CBL Article IV, Section 3.
CBL Article IV, Section 5 requires that nominations in an election for COBA President "shall be made by petitions" bearing at least 25 signatures.
CBL Article IV, Section 6(b) provides that:
The Election Committee shall assist the selected organization in the preparation of the
ballots which shall count the names of the eligible candidates and the offices they seek and shall perform such other functions as the selected ballot counting organization may require. The ballot organization shall merely serve administratively to run the election. All candidates shall be bound by the rules of the balloting organization except as is specifically provided for in the rules of the selected ballot counting organization concerning balloting and mailing etc., the procedures, rules set, and decisions made by the Election Committee shall be final and binding on all candidates, and NOT subject to internal review with the Union. In the event that the balloting organization does not have a dispute resolution procedure, candidates may take up challenges directly with an appropriate Court at the challenging candidate's cost.
CBL Article XVII provides that:
Unless specifically exempted by the [CBL], no officer or member of COBA shall resort to actions or proceedings before any forum, judicial, administrative or otherwise, with regard to any matter pertaining to the COBA, or his/her office or membership in [COBA], until all processes and remedies available under [the CBL] have been fully exhausted.
On May 23, 2016, petitioner moved, by order to show cause, for a temporary restraining order and preliminary injunction enjoining COBA, inter alia, from: 1) printing ballots that did not include his name as a candidate for President of COBA; 2) declaring that petitioner was ineligible to run for COBA President; and 3) obstructing petitioner's campaign activities. Petitioner also sought an order 1) directing COBA to inform the American Arbitration Association (AAA), the selected reputable ballot counting organization for COBA, of the ballot dispute regarding his candidacy for President of COBA; 2) and directing COBA to print ballots containing his name.Under its election rules, the AAA "shall have the right to full disclosure as to the election, including the nomination procedures, if any, and shall determine the method of balloting, and all procedures and arrangements for the administration of the election." Ex. 17, par. 6 to COBA's Aff. In Opp.
In an affidavit in support of his motion, petitioner stated, inter alia, that, on May 18, 2016, he handed his nomination petition to COBA's recording secretary indicating that he was seeking the office of COBA President. Petitioner's Aff., at par. 1. At the meeting, petitioner was advised that the Election Committee found that he was not eligible to run for President. Id., at par. 12. Petitioner concedes that an announcement was made at the meeting that there was an arbitrator on site and that anyone who wished to could have their eligibility arbitrated. Id., at par. 11. He further concedes that he declined to arbitrate. Id., at par. 13.
COBA opposes the motion and purports to cross-move to dismiss the petition and to confirm an arbitration award issued by the AAA on May 23, 2016 (the Award), discussed below, finding that petitioner was ineligible to run for President of COBA.
Although COBA argues that it cross-moves to dismiss the Article 78 proceeding and to convert the instant proceeding to one brought pursuant to CPLR article 75 and, upon such conversion, to confirm an arbitration award issued by the AAA on May 23, 2016, no such cross motion exists. COBA did submit an order to show cause seeking such relief to this Court but it was never signed. However, this Court will treat the papers submitted in support of the purported cross motion as having been submitted in opposition to petitioner's Article 78 petition, especially since petitioner submitted a reply affirmation to the same and thus will not be prejudiced. See generally Marte v City of New York, 102 AD3d 557, 558 (1st Dept 2013).
In the Award, the AAA, COBA's ballot counting organization, determined, inter alia, that petitioner was not eligible to be on the ballot as a Presidential candidate. AAA found that petitioner had notice of the arbitration but refused to appear, and was thus afforded due process. Award, at pp. 10-11. It further stated that petitioner failed to file petitions with at least 25 Delegate signatures, as required by the CBL. Id., at p. 11. Specifically, the record established that, although the petition contained 28 signatures, two signatories to the petition were no longer Delegates when they signed it. Id., at p. 12. Three other signatories asked to have their signatures stricken from his petition because he did not indicate that he was running for President. Id., at pp. 11-14.This reduced the number of signatures to 23, less than the 25 required to petition for the position of President. Id., at p. 12.
The AAA determined that petitioner's failure to set forth the position he sought in the petition violated Article IV, Section 5(a) of the CBL and rendered the petition facially invalid. Id., at p. 15. It further stated that petitioner was not eligible to be President pursuant to Article IV, Section 3 since he was not an incumbent Executive Board member and had not been a Delegate during the two years preceding the election. Id., at p. 16. POSITIONS OF THE PARTIES:
Petitioner argues that he is entitled to a temporary restraining order and a preliminary injunction because he has demonstrated a likelihood of success on the merits, irreparable harm, and a balance of the equities in his favor. In short, he claims that he has established his eligibility to run for President of COBA because he "has been" a Delegate of COBA for more than two years prior to the election. Alternatively, he claims that, pursuant to Not-For-Profit Corporation Law § 714(a), since he had been an officer, he could not be removed from his prior Executive Board position as Corresponding Secretary without a full vote of the COBA membership. Thus, he asserts, his removal from the Executive Board in 2015 was improper and he is thus an incumbent Executive Board member qualified to run for COBA President. He further asserts that he will be irreparably harmed if his name does not appear on the ballot for President since a "re-vote with corrected ballots will never be a completely adequate remedy because the turnout and mood of the electorate will not be the same" as in this election. Petitioner's Memo. Of Law in Supp., at p. 8. In asserting that the equities are in his favor, petitioner argues that the granting of injunctive relief favors the interests of the general public.
This Court notes that a temporary restraining order (TRO) was granted to petitioner pending a decision on this motion. On May 24, 2016, this Court notified counsel for the parties by telephone that it had amended the TRO to, inter alia, enjoin petitioner from telling Delegates or members of COBA that he is eligible to run for President. Nevertheless, in a flagrant violation of this Court's ruling, petitioner appeared on television program "Inside City Hall" on New York 1 on the night of May 24, 2016 and stated that he was eligible to do so.
In opposition to the motion, COBA argues, inter alia, that this Court should not even consider the issue of petitioner's eligibility since petitioner failed to exhaust his internal union remedy of arbitration, which he could have pursued at the May 18, 2016 meeting after the Executive Committee of COBA decided he was ineligible to be on the ballot. COBA further asserts that, since the union constitution was a binding agreement to arbitrate among its members, petitioner was required to arbitrate.
Even assuming that the merits of petitioner's case were addressed, argues COBA, he would lose. First, it argues that petitioner did not meet any of the criteria for being on the ballot since he was not an incumbent member of the Executive Board, he had not served as a Delegate for two years prior to the 2016 meeting election, and the records of COBA's Sergeant-at-Arms reflect that petitioner had not attended 10 consecutive regular meetings. Additionally, he did not have a sufficient number of signatures on his petition.
COBA also maintains that the article 78 proceeding should be converted to an Article 75 proceeding and that the AAA's award should be confirmed.
In his reply memorandum of law, petitioner argues that he met all of the requirements to be placed on the ballot for COBA President. First, he asserts that he exhausted all of his administrative remedies because the Elections Committee made a final determination that he could not run for President, from which no appeal was allowed. He further asserts that COBA's Exhibit 5 "makes it obvious that the AAA was hired only to send out and count the ballots, not to determine eligibility through arbitration without prior notice." Petitioner's Reply Memo., at p. 6. He maintains that COBA fails to cite any AAA rule which grants it the power to determine a candidate's eligibility to run. Id., at p. 8. Additionally, he argues that the determination of the Election Committee was to be "final and binding on all candidates" pursuant to Article IV, Section 6(b) and it thus did not have the power to defer authority to the AAA. Id., at p. 8. He further asserts that there was no requirement that he arbitrate. Id., at p. 6. Further, petitioner maintains that he was not given adequate notice of the arbitration. Finally, he asserts that the affidavits of the Delegates establish that his petition did not mislead anyone. CONCLUSIONS OF LAW :
Dismissal of petitioner's article 78 proceeding is warranted herein since petitioner failed to exhaust his administrative remedies. See Matter of Cross v Russo, 132 AD3d 454 (1st Dept 2015); Matter of R.B. v Dept. of Educ. of the City of New York, 115 AD3d 440, 440-441 (1st Dept 2014). Nor has petitioner demonstrated the futility of pursuing any such administrative remedy or any other exception to the exhaustion doctrine. See Mulgrew v Board of Educ. of the City School Dist. of the City of New York, 88 AD3d 72, 80-81 (1st Dept 2011).
As noted above, Article XVII of the CBL requires a COBA member to exhaust all administrative remedies provided by COBA before resorting to actions or proceedings before another forum, administrative, judicial or otherwise. In a case cited by petitioner, the Appellate Division, First Department stated that " [a] union's constitution and by-laws constitute a contract between the union and its members and define not only their relationship but also the privileges secured and the duties assumed by those who become members, unless contrary to public policy' (Ballas v McKiernan, 41 AD2d 131, 133 [1973], affd 35 NY2d 14 [1974])." Matter of LaSonde v Seabrook, 89 AD3d 132, 137 (1st Dept 2011). "A union that is a not-for-profit corporation—such as COBA—is a quasi-governmental body for the purpose of ensuring that such an entity acts in accordance with its rules and regulations ( citations omitted)." Id.
Petitioner relies on footnote 9 of Matter of LaSonde v Seabrook which states, in part, that "the court must review the union's interpretation of its constitution or bylaws for consistency with the principles of good faith and fair dealing." In that case, the IAS court denied COBA's motion to dismiss, granted petitioners' article 78 petition, and directed COBA to call a special meeting at which charges of misconduct could be presented against COBA's Executive Board. However, Matter of LaSonde v Seabrook is completely distinguishable. Since petitioner failed to exhaust his administrative remedies, he could not, unlike petitioners in Matter of LaSonde v Seabrook, commence an article 78 proceeding.
Here, the administrative remedy provided by COBA regarding its elections is found in Article IV, Section 6(b) of the CBL which provides, inter alia, that "[i]n the event that the [AAA] does not have a dispute resolution procedure, candidates may take up challenges directly with an appropriate Court at the challenging candidate's cost." Pursuant to the foregoing provision, petitioner could not resort to judicial intervention unless the AAA did not have a dispute resolution procedure or, in the alternative, until after he had exhausted the remedies provided by that procedure. Here, the AAA clearly had such a dispute resolution. Indeed, petitioner concedes that, although he was aware that arbitration was available to him at the May 18, 2016 meeting, he declined to arbitrate. Petitioner's Aff., at pars. 11, 13. Thus, he knowingly refused to avail himself of the administrative remedy provided by COBA.
Petitioner nevertheless maintains that he exhausted his administrative remedies because COBA's attorney conceded that the Executive Committee decided that he was ineligible to run for President, which decision he claims was final and non-appealable. Petitioner's Reply Memo., at p. 5. He further claims that COBA made "a final administrative determination that candidates must be incumbent." Petition, at par. 26. However, he clearly did not exhaust his administrative remedies, since he was required by the CBL to arbitrate in order to do so.
Petitioner asserts that neither he nor his attorney knew in advance of the May 18 meeting that the eligibility issue would be turned over to an arbitrator. Petitioner's Reply Memo. Of Law, at p. 9. First, this argument is disingenuous since petitioner, a former Executive Board member and COBA member for 14 years, was presumably aware that the AAA would resolve such an issue pursuant to the CBL. Further, if petitioner had been hesitant to arbitrate because his attorney was not present at the May 18 meeting, he could have indicated that he wished to arbitrate his position and requested that the arbitration be held at a time when his attorney would be available, which he also failed to do.
Even assuming, arguendo, that this Court were not to dismiss the petition on procedural grounds, petitioner failed to establish his entitlement to the relief sought on the merits. It is well settled that, in order to obtain preliminary injunctive relief or permanent injunctive relief, the moving party must demonstrate 1) a likelihood of success on the merits of the action; 2) the danger of irreparable injury in the absence of preliminary injunctive relief; and 3) a balance of equities in its favor. See Nobu Next Door, LLC v Fine Arts Housing, Inc., 4 NY3d 839, 840 (2005); Ramanadhan v Wing, 257 AD2d 383, 384 (1st Dept 1999). In applying these factors, the court must "weigh a variety of factors," and the matter is committed to the court's sound discretion. Doe v Axelrod, 73 NY2d 748, 750 (1988).
Although petitioner argues that he established the likelihood of success on the merits, this is not the case. Despite his claim that his petition "gave a detailed explanation of [its] purpose on [its] face", this is belied by the document itself, which does not set forth his intention to run for COBA President. Ex. F. to Petition. Rather, it states that petitioner seeks "a position on the Executive Board", "on the ballot for the 2016 COBA Elections", "to be elected to an Executive Board [p]osition", and "to run for a position". Id. Therefore, he clearly failed to comply with Article IV, Section 5 (a) of the CBL, which requires candidates to petition for an "office." Ex. B to Petition.
Petitioner further asserts that COBA has failed to cite to any AAA rule which allowed it to make a determination regarding his eligibility to run for President. Petitioner's Reply Memo., at p. 8. This argument is specious, as the AAA's Election Rules specifically provide that it "shall have the right to full disclosure as to the election, including the nomination procedures, if any, and shall determine the method of balloting, and all procedures and arrangements for the administration of the election" (emphasis added). COBA's Affirmation in Opposition, at Exhibit 17, par. 6.
In any event, petitioner was not eligible to be on the ballot because he failed to satisfy CBL Article IV, Section 3, which requires that he be a COBA Delegate for "not less than two (2) years prior to the election, and has attended not less than ten (10) consecutive Regular Meetings of [COBA] prior to [his] nomination, except if already an incumbent Executive Board Member." Ex. B to Petition. Since petitioner was removed from his Executive Board position in August of 2015 (Petition at par. 12), he has not been a Delegate during the two years preceding the election. Additionally, COBA's Sergeant-at-Arms represented that petitioner had not attended 10 consecutive meetings. COBA's Aff. In Opp., at par. 60. Thus, he could only be eligible if he were an incumbent Executive Board member at the time of the election, which he was not, since he was removed from his position as Corresponding Secretary in August of 2015. In any event, whether he meets any of the foregoing criteria is irrelevant, as it is clear that he failed to obtain the requisite amount of signatures on his petition.
As noted previously, the issue of whether petitioner's removal from his position on the Executive Board was proper is the subject of a separate article 78 proceeding.
CBL Article IV, Section 5 requires the petition of a candidate running for President to contain at least 25 Delegate signatures. Ex. B to Petition. Petitioner's initially contained 28 signatures. Ex. F to Petition. Two of the signatures belonged to Michael Fynes and Bobby Frederique, individuals who were not Delegates at the time they signed. Ex. 13 to COBA's Aff. In Opp.; COBA's Aff. In Opp., at par. 61. Since those signatures could not be counted, the number of signatures on the petition decreased to 26. Additionally, Toussaint Boyd and Lance Miller, both of whom signed the petition, executed affidavits in which they represented that they would not have signed it had they known that petitioner was seeking the position of President, and asked to revoke their signatures. Exs. 14 and 16, respectively. Since this brought petitioner's total to 24 signatures, below the minimum to be on the ballot, he could not have prevailed on the merits in an article 78 proceeding compelling COBA to place his name of the ballot.
Given the averments by Boyd and Miller, petitioner's contention that "the affidavits of the Delegates show that [he] did not mislead anyone" (Petitioner's Reply Memo., at p. 15) is highly suspect. The affidavit submitted by a third Delegate (Exhibit 15) has been disregarded by this Court as lacking sufficient credibility.
Petitioner further claims that he will be irreparably harmed if the petition is not granted. Generally, irreparable harm can be established where no adequate remedy, i.e., money damages, exists at law. See U.S. Re Companies, Inc. v Scheerer, 41 AD3d 152, 155 (1st Dept 2007); Lesron Junior, Inc. v Feinberg, 13 AD2d 90, 93-94 (1st Dept 1961). In support of this argument, he states that "[e]lections are, by their nature, extremely time sensitive and cannot be undone" and that "a nullification or re-vote with corrected ballots will never be a completely adequate remedy because the turnout and mood of the electorate will not be the same as it is in this impending election." Petitioner's Memo. Of Law In Supp., at p. 8. However, he fails to explain what "mood" of the electorate he is referring to and why it is crucial for him to be on the ballot this time. Thus, he has failed to use this prong of the preliminary injunction test to overcome the absence of merit discussed above. See, e.g. Schlosser v United Presbyterian Home at Syosset, Inc., 56 AD2d 615 (2d Dept 1977) (a court may compensate for a weakness of one of the elements of the test for injunctive relief by stressing the strength of another).
Finally, petitioner does not set forth any reason why the equities favor the granting of injunctive relief in his favor (see Nobu Next Door, LLC v Fine Arts Housing, Inc., 4 NY3d at 840); rather, he asserts why it would be in the public's interest to grant such relief. Further, although petitioner asserts that the public interest would be furthered in this case by granting the relief demanded because COBA's current President is under federal investigation for corruption, he does not explain why or how granting the relief sought would inure to the benefit of the public as a whole, as opposed to the benefit of just COBA.
Thus, even if the petition were not dismissed on procedural grounds, it would be subject to denial on the merits.
Therefore, in light of the foregoing, it is hereby:
ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed, and it is further;
ORDERED that all stays are vacated; and it is further,
ORDERED that this constitutes the decision and judgment of the court. DATED: May 26, 2016 ENTER: ________________________ Hon. Kathryn E. Freed, J.S.C.